I think that every failure to accommodate does not constitute "discrimination against" -- not that there is no such thing as a failure to accommodate that rises to the level of persecution, hostility or selective burdening of religion that crosses constitutional lines.
I think the Court's emerging account of "neutrality" does not capture this nuance. As for the hypo --a very tough one, as are all of the "unconstitutional conditions" hypos -- I would first ask for the government's reasons for the condition along with other factors that weigh in this balance. It may well be that there is no good reason for drawing this line other than hostility. "Romer-like" My point about "neutrality" being an insufficient tool is that I think the government should have more room to say "because this is religious and I wish to respect a line between the sacred and the secular by avoiding the former's support categorically" than "because this is indecent or has sexual content or....and I do not like it" Also, "neutrality" has a liberal equality ring to it, and I think our religious selves are more resistant to liberal methodologies than other aspects. -----Original Message----- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Tuesday, May 03, 2005 11:04 AM To: Law & Religion issues for Law Academics Subject: RE: Locke v. Davey follow-up Interesting, but if one doesn't accept "neutrality as nondiscrimination," then wouldn't this lead to still more difficulties? In particular, if Locke is accepted on the theory that the Free Exercise Clause does *not* require nondiscrimination against religion, what then would happen in my hypo (or Alan's modification of my hypo): The government gives people money (as general relief, disability relief, and the like), but says "you may not use it for religious study" or even "you may not donate it to religious institutions"? If there's no nondiscrimination-against-religion requirement, would such a discriminatory condition be constitutional? Or if it would be unconstitutional, why would it be unconstitutional? Eugene > -----Original Message----- > From: [EMAIL PROTECTED] > [mailto:[EMAIL PROTECTED] On Behalf Of Toni > M. Massaro > Sent: Tuesday, May 03, 2005 10:58 AM > To: Law & Religion issues for Law Academics > Subject: RE: Locke v. Davey follow-up > > > I think Locke is an excellent example of what happens when an > underlying premise is played out to the point where its > infirmities become glaring. > > I think the real problem lies here: > "Neutrality" under the religion clauses has come to mean > the same kind of "neutrality" that is applied under freedom > of speech and equal protection. If one carries this approach > to its logical extension, then Locke looks wrong --maybe even > is wrong. Or, the holding must be so minimized as to make > the case a cipher. > I think rejecting Locke as analytically flawed because it > departs from doctrine that requires a horizontally consistent > definition of neutrality really does make analytical sense > under the current doctrine. > > Nevertheless, this leads to several practical and > constitutional difficulties: 1. The "neutrality is neutrality > is neutrality" approach ignores the ways in which religion > really is different in kind, not just another idea or > viewpoint or constituency. > > We already see the utter weirdness of acting like religion is > "just another viewpoint" or insisting that words like "under > God" are not religious if embedded in the context of a > patriotic ritual --like a crèche surrounded by a and wishing well. > > > 2. As Doug says, following this "logic" might lead to extreme > results in terms of creating a much wider category of > "mandatory funding" scenarios. (But again, it is indeed hard > to square with other case law, now that the Establishment > Clause has withered as a unique defense to non-funding of > religious ends. In fact, without the old E.C. defense to > excluding religion its exclusion actually becomes an E.C. > problem because it is "hostile" to religion!) > > 3. If the Court carries this all forward, then it not only > may require (versus allow, as in Zelman)funding of religion > in all cases where "neutrality" would be thereby satisfied > (per Rosenberger) but also might require that religious > recipients be excused from important conditions on the > funding (Dale). The new case on the Solomon Amendment comes > immediately to mind. > > *State and federal fiscs being what they are --tight -- the > implications may be profound. > > *Non-profit budgets are terribly tight as well --If folks > will rush to fill classroom space for community activities, > and they do, they certainly will learn the ropes of filling > out applications for state and federal funds. > > It will be interesting to see what Justice Scalia in > particular does with this last extension of Dale --i.e. you > must give me the money without the conditions-- given his > concern in Smith about minorities undermining democracy, and > given his sense (prayer cases) that "compulsion" means far > more than psycho-social coercion. > > It will also be interesting to see what a post-Rehnquist > Court will do in the funding scenario, given his reluctance > to view non-funding as coercive, discriminatory, or otherwise > an undue burden. "Just refuse the money" has been his fairly > consistent response to such claims. > > > > > > > > > > > > > > > > > > > > > > -----Original Message----- > From: [EMAIL PROTECTED] > [mailto:[EMAIL PROTECTED] On Behalf Of > Douglas Laycock > Sent: Tuesday, May 03, 2005 10:07 AM > To: Law & Religion issues for Law Academics > Subject: RE: Locke v. Davey follow-up > > As Tom Berg has effectively pointed out, the opinion in > Davey is schizophrenic. It relies heavily on the state's > interest in not funding the training of clergy; at one point, > it says that is "the only interest" at issue. That suggests > that the case is confined to the clergy and all other > religious uses of government grants are outside its scope. > But it also relies on the claim that there is no burden > because the government is free to choose what it is willing > to subsidize. That argument has almost infinite application, > and as Eugene keeps repeating, nothing can be logically > distinguished from it. > > Which argument is the holding? Well, in the first year > of law school, the narrow clergy-only rationale is the > holding. Those were the facts, and everything else is dicta. > In the real world, there were seven votes for both halves of > the opinion, and three of them would have to support any > distinction to change the result. Four of the seven think it > is broadly unconstitutional to let private citizens use > government funds for religious purposes; they are not likely > to join the first opinion distinguishing Davey. If that is > right, then any distinction has to capture all three of > Kennedy, O'Connor, and Rehnquist (or their replacements). I > would be surprised if all three of them say the opinion is > only about the clergy. Rehnquist of course has been pushing > his idea that government can choose what it is willing to > subsidize, and protect that choice with prophylactic rules, > for more than two decades. > > The distinction when it finally comes may not be very > logical. But if states push the envelope in the ways > suggested by Eugene's hypotheticals, eventually the Court > will shrink from what seem to be extreme results, and it will > draw an illogical distinction if it can't think of a logical one. > > > Douglas Laycock > University of Texas Law School > 727 E. Dean Keeton St. > Austin, TX 78705 > 512-232-1341 (phone) > 512-471-6988 (fax) > > -----Original Message----- > From: [EMAIL PROTECTED] > [mailto:[EMAIL PROTECTED] On Behalf Of > Conkle, Daniel O. > Sent: Tuesday, May 03, 2005 11:56 AM > To: Law & Religion issues for Law Academics > Subject: RE: Locke v. Davey follow-up > > Needless to say, the precedential effect of Locke v. Davey is > unclear--that's what makes the hypothetical interesting--but > I believe that the holding can reasonably and properly be > confined in the manner I have suggested. The Court > emphasized that the burden on Davey was minimal, and it also > emphasized that the state had distinctive antiestablishment > concerns that were linked to historical disputes about > state-funded clergy. > > Dan Conkle > > -----Original Message----- > From: [EMAIL PROTECTED] > [mailto:[EMAIL PROTECTED] On Behalf Of > Volokh, Eugene > Sent: Tuesday, May 03, 2005 11:22 AM > To: Law & Religion issues for Law Academics > Subject: RE: Locke v. Davey follow-up > > > I wonder: Would it indeed, given Locke, be > unconstitutional for the state to bar all studies which in > effect are focused on devotional theology, setting aside the > major? (Imagine a cap on the number of such classes you > could take.) It would surprise me if "major" became a > constitutionally significant category. > > As to the state's antiestablishment being weaker, why? > In both instances, the state is claiming an interest in > keeping tax money from flowing, even as a result of private > choice, to religious education (or, in Alan's modification, > in which the state barred the religious donation or tithing > of aid money, to churches). Why can't the state assert that > its interest is identical, and identically strong, in both contexts? > > Eugene > > Dan Conkle writes: > > > As I read the opinion, Locke v. Davey applied a sort of balancing > > test. As Mark notes, the Court found a strong and historically > > recognized antiestablishment interest on the part of the state. At > > the same time, the Court also found the free exercise > burden, if any, > > to be slight. The Court concluded that the state's disfavor of > > religion was minimal and did not suggest hostility. The > Court might > > well find a greater burden--and perhaps increased evidence of > > hostility--if a state were to bar welfare recipients from > using their > > benefits for religious instruction. Note that Davey could > have kept > > his scholarship and used it to study devotional theology, > as long as > > he did not declare that field as his major. > > > > If I'm right, the balance tips differently in Eugene's hypothetical > > for each of two reasons: the state's antiestablishment interest is > > weaker and the burden on free exercise is greater. > _______________________________________________ > To post, send message to Religionlaw@lists.ucla.edu To > subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
